Defenses of Separating Children from Parents — And Why They’re Wrong

President Trump ordered the end of his child separation policy, and a court has ordered the reunification of parents who were separated from their children. The Department of Homeland Security (DHS) has said it will stop referring parents, but many conservatives felt that the family separation was a positive development in the fight against illegal immigration and even required by law, so here is a review of nine of their most common defenses of the policy. 

1. “It's the law, and that's what the law states.” -White House Press Secretary Sarah Huckabee Sanders

• No, it doesn’t, and in many cases, the law prohibits criminal prosecutions.

No law requires immigrant children to be separated from their parents. Under the Trump administration’s “zero tolerance” policy, DHS chose to refer to the Department of Justice (DOJ) twice as many border crossers—and far more parents—for prosecution for “improper entry” under 8 U.S.C. 1325. This law provides that “any alien who… attempts to enter the United States at any time or place other than as designated by immigration officers… shall… be fined… or imprisoned not more than 6 months.” Those who claim that this statute requires separation must defend the view that it 1) requires referring all offenders for prosecution, 2) requires separating children during that referral, 3) requires prosecutors to seek jail time, and 4) allows no exceptions.

None of these four claims are true. 1) The “shall” in this statute doesn’t require prosecution of every single offender, but rather limits the penalties to be imposed (“shall be… not more than”). As DOJ’s own manual affirms, “the prosecutor has wide latitude in determining when, whom, how, and even whether to prosecute… [as] has been recognized on numerous occasions by the courts” (citing a half a dozen cases). The statute, however, specifies the maximum or minimum penalties should the prosecutor decide to prosecute. 2) In any case, nothing in this statute requires that—in the process of DHS’s referral for prosecution—a parent be separated from their child, and 3) the statute explicitly allows prosecutors not to seek jail time. In response to an ACLU lawsuit, DOJ even admitted to the court that the detention and prosecution decisions are entirely “discretionary.”

4) As importantly, 8 U.S.C. 1158 provides that “Any alien who. . .  arrives in the United States (whether or not at a designated port of arrival…), irrespective of such alien’s status, may apply for asylum…” In other words, it is completely legal for illegal immigrants to apply for asylum not at a designated port of entry. Congress enacted the statute permitting asylum in 1980 after it criminalized improper entry in 1952, indicating that it did not envision asylees being prosecuted. Moreover, the United States is a party to the United Nations 1951 Refugee Convention. Article 31 prohibits, with some exceptions, “penalties, on account of illegal entry or presence” on refugees because “the seeking of asylum can require refugees to breach immigration rules.” The DHS Office of Inspector General has found prosecuting asylum seekers at the border “may violate U.S. treaty obligations” under the Convention.

Congress has certainly never made it mandatory to separate families. In fact, the House Committee on Appropriations in 2005 under Republican control stipulated in its report attached to the annual appropriations bill that it “expects DHS to release families or use alternative to detention such as the Intensive Supervised Appearance Program whenever possible,” and that if detention is temporarily necessary or otherwise unavoidable, it “directs DHS to use appropriate detention space to house them together.”

2. “If you are seeking asylum for your family, there is no reason to break the law and illegally cross between ports of entry.” -DHS Secretary Kirstjen Nielsen

• False. Secretary Nielsen has admitted DHS is turning back many asylum seekers at ports of entry and that it is still separating many families who are admitted at ports.

In January 2017, the American Immigration Council (AIC) filed a complaint about the DHS’s practice of turning away asylum seekers at ports of entry. Human Rights First documented numerous other cases in May 2017, concluding that the policy “is pushing some asylum seekers to dangerously cross the border between formal entry points.” In July, AIC filed a class action lawsuit challenging the policy. In December 2017, NPR reported that DHS officials at a port in San Diego were telling asylees from Central America “they can't come in.” In June 2018, the Atlantic published video of asylum seekers being turned back at ports of entry—one man was turned back 20 times in four days. This forced them to sleep homeless under a bridge in Mexico. The same month, the Intercept reported on the officials in Texas rejecting asylum seekers from Central America, producing video of the illegal actions, and the Washington Post reported on a father with a 15-year-old son whom CBP officials had rejected nine times over the course of nine days. Here are many other cases.

In April 2018, Secretary Nielsen herself admitted this was happening and said, “We are metering, which means that if we don't have the resources to let them in on a particular day, they are going to have to come back.” It is illegal under 8 U.S.C. 1158 to refuse to allow a person to submit an asylum application. It takes minimal resources to process an asylum claim, so the idea that they need to stop processing now is baseless. Moreover, because the practice has forced homeless, hungry, and desperate people to cross between the ports, DHS still has to process the claims, while at the same time, it has chosen to expend resources to arrest them, refer them for criminal prosecution, and house the children in detention facilities—all of which is more expensive than processing the original claim.

Finally, DHS is still separating some families who presented themselves at ports of entry for asylum. Secretary Nielsen has stated that “for those seeking asylum at ports of entry… we only separate if the child is in danger, there is no custodial relationship between ‘family’ members, or if the adult has broken the law.” The ACLU filed a lawsuit on behalf of a woman who DHS separated from her 7-year-old daughter after she turned herself in at a port of entry. DHS eventually returned the child five months later without an apology. In December 2017, DHS separated four fathers from their children, claiming that it couldn’t verify their relationships. Many other cases have been documented by Erika Pinheiro, policy and litigation director at Al Otro Lado. The separation policy is far broader than DHS maintains.

3. “If you as a parent break into a house, you will be incarcerated by police and thereby separated from your family. We’re doing the same thing at the border.” -DHS Secretary Kirstjen Nielsen

• No, it’s not the same. Burglary is a serious crime and generally a felony. Illegal entry is not.

Ignoring the illegality of prosecuting asylum seekers and setting aside the fact that there is no requirement to prosecute, illegal entry is a misdemeanor offense. Illegal entry is most similar to technical violations of motor vehicle law, such as driving without a license, not breaking and entering, because it amounts to nothing more than movement without a proper permit. Many misdemeanors do not even require police to take a person into custody at all. A variety of traffic offenses—including driving without a license, operating an unregistered vehicle, speeding, and other offenses—are misdemeanors in dozens of states. In general, police simply issue a summons to appear in court (for an example, see the Virginia code here). If a child is in the vehicle, they are not separated from the parent pending the final dispensation of the case.

In the unusual cases in which a parent is brought into custody for such a violation, the children either wait in the police station while the parent is processed or are handed off to a relative. For example, in the case of Gail Atwater v. City of Lago Vista, a local police officer arrested Atwater for a seatbelt violation with children in the car. The officer initially said that the children could come to the police station, but allowed a friend of Atwater to pick them up. In other words, there is a massive difference between the treatment of minor offenses committed by Americans and these parents coming to the border. Moreover, if U.S. parents and children are separated for these types of offenses—as in the Atwater case—it is an outrage, not a justification for further separations.

4. “The separation of parents and their children is because of a court ruling.” –Speaker Paul Ryan

• No, it only requires the government to treat children humanely.

No court case requires the separation of parents and children. Defenders of the Trump policy point to the Flores settlement agreement and the Ninth Circuit’s 2016 interpretation of it, but neither requires family separation.

In 1985, Border Patrol arrested a 15-year-old Salvadoran girl named Jenny Lisette Flores attempting to cross the border illegally. She was attempting to reunite with her mother who had come to the United States during El Salvador’s long and bloody civil war. She—and all other minors in government custody—were subject to abuse, detained alongside adults, and forced to undergo daily strip searches, which a judge found violated the Constitution in 1988. After more than a decade of litigation over her case, the Clinton administration settled, entering into an agreement that specified standards for facilities for minors and required the government to quickly place minors in “the least restrictive setting appropriate to the minor's age and special needs.” The Ninth Circuit in 2016 found that it “unambiguously applies both to minors who are accompanied and unaccompanied by their parents.”

Nothing in the Flores settlement or the Ninth Circuit decision mandates that children be separated from their parents—just the opposite: Flores requires that they be reunited with them if they happen into government custody alone. Minors are only to be separated from “unrelated adults.” The Trump administration argues that because Flores mandates the release of children within 20 days, it requires them to separate children from their parents who are still in custody. This is false. Flores does not prohibit the release of parents, which would keep the family unit together as long as their case is pending (argument #5 below shows how this can be workable).

In any case, Flores was not the origin of the family separation policy because it only governs DHS custody determinations. The separation of children and parents started up in earnest this year because DHS decided to transfer to DOJ—and DOJ decided to prosecute—parents who had crossed the border with children.

5. “Adults and children were simply being released in the country [when] we refused to prosecute these adults for illegal entry.” -Attorney General Jeff Sessions

• Prosecution doesn’t prevent eventual release, and alternatives to detention work and save money.

Prosecutions for illegal entry do not prevent release into the United States. After the 9^th Circuit clarified that Flores applied to all minors, the Obama administration did decide to release both parents and children pending determinations on their asylum claims, rather than separate the children from the parents. But prosecutions for illegal entry only delay deportation for those without a credible asylum claim and do not prevent release of asylum seekers by the DHS after DOJ is finished prosecuting them. In fact, the criminal prosecutions often only take a few days to process because defendants are prosecuted in mass, and most plead guilty as quickly as possible (particularly when they are separated from their children). After the prosecution, the parents are sent back to DHS custody—just not with their kids.

While families were released in 2015 and 2016, the Obama administration created alternatives to detention that included bonds, electronic monitoring, and community management. These programs resulted in high levels of compliance among asylum seekers pursuing their claims in immigration court. In 2016, 83 percent of those released on bonds showed up in court. The Intensive Supervision Appearance Program (ISAP) resulted in appearance rates of 99.6 percent. The Family Case Management Program (FCMP) uses caseworkers to help immigrants comply, and 100 percent of the immigrants in the program showed up for their court hearings. Nonetheless, the Trump administration terminated this program in June 2017. The Family Placement Alternatives program which relies on community monitoring achieved a 97 percent appearance rate, at a cost of just $50 per day per family, compared to the estimated detention cost of $798 per family. In other words, there are cheaper alternatives to detention.  

6. “It would be a tough deterrent.” -White House Chief of Staff John Kelly

• Family separation has failed to deter people from coming, and it is cruel and illegal to deter asylum seekers from seeking safety in the United States.

No evidence has emerged that family separation has done much to deter illegal immigration. DHS experimented with family separation in a single border sector around El Paso from July to November 2017. As Dara Lind at Vox first reported, the number of families coming through that sector actually increased 64 percent during the experiment from 231 to 379. May was the first month that saw the policy applied across the entire border, and the number of families stayed virtually the same from April through the end of May. In general, the number of families has increased from a monthly average of 6,301 in 2017 to 7,389 in 2018, despite increasingly harsh enforcement.

In any case, it is entirely legal to seek asylum at or between ports of entry, and prosecuting asylum seekers in order to deter them from fleeing violence is illegal and cruel. Kelly has said that he wants to deter them because the journey is so dangerous. But the migrants are aware of the risks. A UNICEF report from 2016 highlights stories of Central Americans who are planning to travel or have attempted to travel to the United States, including a boy who lost his leg falling from a train on the way. Still, he predicts that his siblings will eventually make their own attempts to get to the United States. As UNICEF concludes, “Anyone who fled from a gang or other criminal organizations is at high risk of being attacked, raped or killed upon returning home.” Dozens of deported Central Americans, including some children, have already been murdered. The repeated attempts of people who were deported further highlights that they consider the dangerous journey a risk worth taking.

7. “The kids are being used as pawns by the smugglers and the traffickers.” -DHS Sec. Kirstjen Nielsen

• False. DHS statistics show that 99.8 percent of all families were not alleged smugglers.

DHS alleges that 237 individuals of the 106,724 who entered as a family unit from October 2016 to February 2018 pretended to be the parent of a unrelated child—that is 0.2 percent of all family members. It is important to remember that this is just what DHS alleges, not what it has proven in court. Some of these parents dispute DHS’s findings, claiming that they are the parents of the children, and have now been wrongfully separated from them.

8. “Our issue is strong borders, no crime; their issue is open borders, let MS-13 all over our country.” -President Trump

• False. Latin American immigrants, including illegal immigrants, are less likely to commit crimes.

In 2016, immigrants from Latin America were about half as likely to end up committing crimes and being incarcerated in the United States as native-born Americans. Even illegal immigrants from Latin America—who can be incarcerated in detention and prisons purely for immigration offenses (as the administration is doing)—are significantly less likely to be incarcerated in the United States than people born in the United States. A substantial body of research now shows that immigration has reduced crime rates in general across the United States.

9. “Such a difference in the media coverage of the same immigration policies between the Obama Administration and ours.” – President Trump

• Obama’s flawed policies don’t justify Trump’s, and while Obama did occasionally separate some families, Trump not only increased the practice dramatically—he made it mandatory.

President Obama never had an explicit policy of separating families. Nonetheless, the Obama administration’s activities should not be downplayed. Virtually all the actions that the Trump administration has taken are ramped up versions of policies and practices of the prior administration. American Immigration Council filed a complaint on behalf of five asylum seekers denied access to ports of entry in early January 2017 before President Trump took office and called the practice “systematic.” Lutheran Immigration and Refugee Service, Women’s Refugee Commission, and Kids in Need of Defense published a report the same month describing numerous reports of family separation as a consequence of criminal prosecutions.

But DHS turned the problematic procedures under the Obama administration into official policy—indeed, appearing to even intentionally target parents with children as a deterrent. Under Obama, DOJ’s policy was generally not to prosecute parents traveling with children (though it is clear that DHS did not always refrain from referring parents to DOJ for criminal prosecution). In any case, under Trump, the share of border crossers that were prosecuted shot up from 30 percent to 60 percent (not quite “zero tolerance,” but moving in that direction). DHS has not published statistics on the number of separated families over time, but in May through June 2018, the policy separated between 2,300 and 3,000 children from their parents. The number of cases before the policy is unknown, but likely in the dozens per month or fewer.